Opinion
13/028491
07-15-2015
Linda Cipura, Appellant-Plaintiff, v. David Savage, Respondent-Defendant.
For Appellant: Thomas J. Rzepka, Esq. 2300 W. Ridge Road, Suite 200 Rochester, NY 14626 For Respondent: Pro Se
For Appellant: Thomas J. Rzepka, Esq. 2300 W. Ridge Road, Suite 200 Rochester, NY 14626 For Respondent: Pro Se Christopher S. Ciaccio, J.
Plaintiff appeals from a Decision, after a bench trial, of the Rochester City Court (Crimi, J.) dated June 14, 2013, which dismissed the Complaint. For the reasons set forth below, the lower court is reversed, and judgment is granted in favor of the Plaintiff.
Plaintiff sued for breach of contract, claiming that the roof defendant installed on her home in 2009 violated the Rochester Building Code. That Code incorporates by reference the provisions of the New York State Residential Building Code (hereinafter "The Code"), which states as follows:
J502.4.3: "Recovering versus replacement. New roof coverings shall not be installed without first removing existing roof coverings where any of the following conditions occur: 3. Where the existing roof has two or more applications of any type of roof covering." ( See Plaintiff's Exhibit 4).
Defendant concedes that he violated the Code by installing roofing shingles over two previous roof coverings. He argues however that he did everything the contract called for, that the plaintiff did not want or could not afford the more expensive "tear-off," and that she has had the benefit of a good, leak-proof roof since the date of the contract. He adds that he made little money on the project, perhaps only the cost of his labor (about $300.00), and that of the $7,100.00 paid toward the contract, only $5,900.00 was for the roof; the remainder was for the reconstruction of the garage. He adds that he was doing a favor for somebody who had been referred by a high school friend.
Plaintiff claims her damages are $10,000.00, which is the estimate she obtained to tear-off the existing roofs and install a roof that complies with the Code.
In reviewing a decision following a non-jury trial, this Court may independently review the evidence presented and grant judgment as warranted by the record, giving due deference to the trial court's credibility determinations (Caggianelli v. Sontheimer, 46 AD3d 1206, 1207 [3rd Dept. 2007], citing Poli v. Lema, 24 AD3d 981, 983 [3rd Dept. 2005]).
It has been held that "in every home improvement contract, the contractor has an implied duty to perform the contact in accordance with fire prevention and building code requirements. The consumer homeowner relies upon the building contractor's skill and expertise to perform the alterations and improvements." (Reale v. Linder, 135 Misc 2d 317, 322 [NY Dist Ct 1987], affd as modified 143 Misc 2d 496 [NY Sup Ct App Term 1988]).
Although the contract for the home improvement did not expressly prescribe that the construction be performed in compliance with Building Code requirements, it must be presumed that the parties intended that the contract be performed in accordance with State and Local laws. (Siegel v. Revival Const. & Development Corp, 2010 WL 1640113, 2010 NY Slip Op 30897[U] [Sup Ct NY County]; A. Palmieri Landscaping v. Canoni, 11 Misc 3d 1088[A] [New York City Ct. 2006]; see generally Kibler v. Gillard Const., Inc., 53 AD3d 1040, 1042 [4th Dept 2008]; 22 NY Jur Contracts § 353).
Consistent with such a presumption, it was held in Strauss v. Union Central Life Ins. Co., 170 NY349, 356 (1902) that "all contracts are made subject to any laws prescribing their effect or the conditions to be observed in their performance...."
Thus, the Court finds that the defendant breached his contract with the plaintiff by failing to comply with an implied duty to construct the roof in conformance with the building code. The Court also finds that the plaintiff sustained identifiable damages.
It is well settled that, in a case of defective construction, the "appropriate measure of damages is the [reasonable market] cost to repair the defects" if the defects are reparable (Brushton-Moira Cent. School Dist. v. Fred. H. Thomas Assoc., P.C., 91 NY2d 256, 261-262 [1998]), less any amount still due under the contract (see Thompson v. McCarthy, 289 AD2d 663, 664 [3rd Dept 2001]).
The situation in Brushton-Moira Central School District is nearly identical to the case at bar. Defendant built a school building later discovered to have defects. The defects were in a sense latent. The building was completely useable for its intended purpose after completion, and in fact was used. The school district did not incur any ongoing damages as a result of the defects. Nonetheless, the Court upheld an award equal to the cost of the re-construction necessary to restore the plaintiff to the position she would have been in if the contract had not been breached.
Here, plaintiff has a new roof. She is getting, and has gotten over the last several years, the benefit of the roof. Nonetheless, she is not in the position she would have been had there been no breach of the implied duty and thereby the contract, and the cost of restoring her to that position, which would involve tearing off the existing roof and installing a new one, based upon the credible evidence, is $10,000.00.
Some older cases (see generally, Calamari and Perillo, Contracts, Sections 14-29, and the cases cited therein) caution against measuring damages by the cost of remedying the defect if it would result in unjust enrichment, i.e., the plaintiff gets the benefit of the construction and may simply pocket the money awarded as damages, rather than undertaking the repairs. But the modern cases do not seem to follow that line of reasoning. (See Brushton-Moira Cent. School Dist., supra; Caggianelli v. Sontheimer, 46 AD3d 1206[(3rd Dept 2007].
Nor is there anything unjust in the instant case if the plaintiff were to recover a money judgment from the defendant. It is common knowledge (of which the Court takes judicial notice) that a homeowner cannot sell a house upon which a mortgage or title insurance will attach until all code violations are remedied. So at some point in time, plaintiff (or her heirs) will have to incur the cost of tearing off the roof and replacing it.
On the other hand, Plaintiff should not be awarded the full amount of the estimated new roof, since she would then be in a better position - by $4,100.00 - than if she had simply contracted for the full tear-off in the first place. Accordingly, the Court awards damages in the amount of the original contract, or $5,900.00. That amount reflects no unjust enrichment, since when Plaintiff undertakes the roof repair, she will experience no net gain.
The decision of the lower court is reversed, the action reinstated, judgment is to be entered in favor of the plaintiff and the Court awards damages in the amount of $5,900.00, plus interest from the date of the breach, which is the date the contract was completed, or June 1, 2009.
This constitutes the Order of the Court. Dated this 15th day of July, 2015 at Rochester, New York.
________________________________
HON. CHRISTOPHER S. CIACCIO
MONROE COUNTY COURT JUDGE